Bogart v. Superior Court

ROTH, P. J.

On or about February 27, 1964, the Grand Jury of Los Angeles County indicted petitioner for one (1) count of conspiracy, nine (9) counts of grand theft and thirty (30) counts of forgery.

By this proceeding in prohibition petitioner seeks to restrain the Superior Court of Los Angeles County from proceeding with the criminal action.

[875]

eurred in by 14 grand jurors, as required by Penal Code, section 940, and that the trial court is thus without jurisdiction to proceed with the action.

The record initially filed with the petition, did not contain a transcript of the indictment proceedings. When brought before us, however, we note that it shows that the indictment was returned before Judge Joseph A. Wapner, in the presence of 20 members of the grand jury and endorsed as a “true bill.” The original minute entry in the Superior Court’s minutes indicates that the foreman of the jury expressly stated that 12 or more were present and concurred in the indictment. Petitioner correctly argues that it cannot be determined from this entry whether 14 jurors in fact concurred in the indictment or whether it was 12 or 13.

However, on August 17,1964, the minute entry was amended

nunc pro tunc

by Judge Bernard Lawler, to delete the word “Twelve” and to substitute the word “Fourteen” as the number of grand jurors concurring in the indictment.

Upon oral argument of the petition, both sides agreed that the only question in regard to the validity of the

nunc pro tunc

amendment was whether the trial court abused its discretion in making the amendment. We therefore allowed each party to augment the record with supplementary briefs on this issue.

The reporter’s transcript of the indictment proceedings now before us, plus the affidavit of Judge Wapner, shows conclusively that 14 or more grand jurors participated in and concurred in the indictment as required by Penal Code, section 940. The